#402-G, Merry-Go-Round Clusters Homeowner Association v. Buckingham, (April 5, 2000) (Panel: Stevens, Skobel, Glancy ) (Glancy dissenting)

The homeowners association (HOA) filed a complaint alleging that the homeowner (HO) had constructed a fence without approval, had failed to complete the necessary landscaping of his yard, and had failed to complete the construction of his new home so as to make it conform to community rules.  The HO claimed he had approval, that the HOA had waived the violations and that the HOA had acted unreasonably.

The evidence at the hearing showed that the HOA governing documents required approval for the construction of fences, and that if the HOA failed to act on an application within 45 days, the application was deemed approved.  The documents also require the owners to maintain their lots and landscaping, and impose certain design requirements for fences and decks, and it was clear there was considerable correspondence between the parties about the details of the house and the HOA's requirements on certain parts of it.  The HOA instructed the HO to submit his landscaping application and to finish certain items on the house according to its rules.  On May 18, 1997, the HO submitted his landscaping plans, which included a fence; and on June 21, 1997, the HOA responded to this application asking for more details on the fence and stating its rules for the fence and where it could be located.  In the next several months there was additional correspondence between the parties over the fence, with the HOA stating its requirements.  The HOA never issued written approval for the fence but the HO constructed it anyway.  The HO claimed he had been given oral approval when he had a chance meeting with one of the members of the architectural committee, but the person involved denied it and testified that he had no authority to give such approval by himself.

The hearing panel noted that under the rule of the Maryland Court of Appeals in Kirkley v. Seipelt, 212 Md. 127 (1957) a decision of the board of directors of a common ownership community on an architectural issue will be upheld if the rules are clear and within reasonable bounds, and the board's decision is not arbitrary or unreasonable.  The panel held that in this case the HO had not obtained permission to construct the fence and that the HOA had the right to set the conditions it did on the fence location and appearance.  The panel also concluded that the HOA had not yet made a final decision on the fence.

The panel therefore ordered the HO to submit a new landscaping application that would include a complete description of the fence as built or as the HO proposed to modify it, and to do so within 30 days.  The HOA then had 10 days to notify the HO if the application was incomplete, and the HO must supply the missing information within 10 days after that.  The HO must then comply with the HOA's final decision on the completion of the landscaping plan, including the fence, within 90 days after that decision was issued.  The panel also ordered the HO to complete the work on his house so as to conform to the architectural rules within 60 days.